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[TYPE THE COMPANY NAME]

EFFECT OF MARRIAGE ON PROPERTY

RIGHTSPRESENTED TO: FACULTY OF CONFLICT OF LAW

[Type the author name]

11/25/2010

PRESENTED BY: RICHA JHA, 5TH YEAR, ROLL. 52

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ACKNOWLEDGEMENT

The encouragement, help, guidance and support of many well wishers have helped me in

accomplishment of my project entitled EFFECT OF MARRIAGE ON PROPERTY

RIGHTS .

Technical contributions apart, the moral and assistance that was extended by a family friend,

who forms part of research team at Center for Internet and Society which was the mainstay

for successful completion of this project, needs its due appreciation as well.

I will be failing in my duty if I do not acknowledge and convey our special thanks to Mr. P.P

Rao, Faculty of Conflict of Law for his unstinted encouragement throughout the effort. I

would also like to extend my heartfelt gratitude to my parents and all those unseen hands that

helped me out at every stage of our project work.

Thanking all for their aid...

RICHA JHA (R. No. 52)

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TABLE OF CONTENTS

RESEARCH METHODOLOGY...........................................................................4

REFERENCES.....................................................................................................4

A.EFFECT OF MARRIAGE ON PROPERTY RIGHTS -INTRODUCTION................................................................................................... .5

B.WORKING OF CONFLICT OF LAW IN MARITALISSUES.................................................................................................................... .6

C.MARITAL PROPERTY RIGHTS RELATED ISSUES.................................... ..81. PUBLIC POLICY.............................................. .............82. THE CHOICE OF LAW................................................ .9

D.VALIDITY OF THE MARRIAGE ........................................................ ...10E. CONFLICT OF LAWS AND MARITAL PROPERTY........................................11F. LAW OF CAPACITY IN INTERNATIONAL MARRIAGES............................14G.NEED FOR CONFLICT OF LAW RULES IN MARITAL PROPERTY

ISSUES................................................................................................................... 16

H.''LEX LOCI CELEBRATIONIS''........................................................................... .19I. CONFLICT OF LAW ON MARITAL PROPERTY-CASES ......................... .....20

1. Ogden v Ogden...................................................... .......202. Schwebelv Ungar..................................................... ....213. Lawrence v Lawrence................................................ ...21

J. POSITION IN INDIA .................................................................................... .......22K.CONCLUSION.............................................................................................. ........24L. BIBLIOGRAPHY............................................................................ ......................25

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RESEARCH METHODOLOGY

The researcher has adopted a purely doctrinal method of research as the research paper

discusses the matter in which no field work is required for the same and the Doctrinal

approach is perfectly suited for the same. The researcher has made extensive use of several

libraries, namely, the library at the Chanakya National Law University, Indian Law Institute,

New Delhi, the Indian Society of International Law library, and also the Internet sources.

SCOPE AND LIMITATIONS:

Though the detailed and extensive study of This project, The subjective nature of the present

project topic is so diversified in its approach that one can talk volumes on the topic. The researchers

are limited by the resource availability and limitations and are unable to deal in the most exhaustive

way with the topic and deal with the sub areas (sub heads) at length.

SOURCES OF DATA AND MODE OF CITATION :

The researcher has used secondary sources of data in the project like Articles , Websites,

Journals and Books.The researchers have followed a uniform mode of citation throughout the

course of this research paper.

________________________________________________

REFERENCES

1. Arendell v. Arendell2. Bilasraj Joharmal v. Shivnarayan Sarupchan3. Birmingham Water Works Co. V. Hume, 121 Ala. 168, 25 So. 806 (1898).4. Brien dit Desrochers v. Marchildon5. De Nicols v. Curlier,6. Fisher v. Fisher7. Kashinath Govind v. Anant Sitaramboa8. Krishnaji Pandurang Sathe v. Gajanan Balwant Kulkarn.9. Lawrence v Lawrence10.Mahadeo Govind Suktankar v. Ramachandra Govind Suktankar11.Mason v. Fuller12. mcanally v. O'Neal13.Ogden V Ogden14.Mueller v. Mueller,15.Nelson v. Goree's Adm'r, supra note 3;16.Nilkanth Balwant Natu v. Vidya Narsinh Bharathi Swami17. Routh v. Her Husband18.Schwebel v Ungar [1964] 48 DLR (2d) 644.

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M.EFFECT OF MARRIAGE ON PROPERTY RIGHTSINTRODUCTION

In divorce cases, when a court is attempting to distribute marital property, if the divorcing

couple is local and the property is local, then the court applies its domestic law lex fori. This

becomes much more complicated when local laws allow polygamy. Each state has its own

marital property laws. In some of the spouses receive/give marital property from two or more

simultaneous spouses, while others may only receive/give from one spouse only, depending

on whether their home province allows polygamy.

The case becomes even more complicated if foreign elements are thrown into the mix, such

as when the place of marriage is different from the territory where divorce was filed; when

the parties' nationalities lex fori and residences do not match; when there is property in a

foreign jurisdiction; or when the parties have changed residence several times during the

marriage.1

Each time a spouse invokes the application of foreign law, the process of divorce

slows down, as the parties are directed to brief the issue of conflict of laws and provide

translations of the foreign laws. Different jurisdictions follow different sets of rules. Before

embarking on a conflict of law analysis, the court must determine whether a property

agreement governs the relationship between the parties. The property agreement must satisfy

all formalities required in the country where enforcement is sought.

Whereas commercial agreements or prenuptial agreements generally do not require legal

formalities to be observed, when married couples enter a property agreement, stringent

requirements are imposed, including notarization, witnesses, special acknowledgment forms.

In some countries, these must be filed or docketed with a domestic court, and the terms must

be so ordered by a judge. This is done in order to ensure that no undue influence or

oppression has been exerted by one spouse against the other. Upon presenting a property

agreement between spouses to a court of divorce, that court will generally assure itself of the

following factors: signatures, legal formalities, intent, later intent, free will, lack of

oppression, reasonableness and fairness, consideration, performance, reliance, later

repudiation in writing or by conduct, and whichever other concepts of contractual bargaining

apply in the context.

1Dicey and Morris, Conflict of Laws (13

thed., para 23-060) in Atul M. Setalvad, Conflict of Laws (Lexis

Nexis Butterworths, Delhi) p. 420.

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N.WORKING OF CONFLICT OF LAW IN MARITAL ISSUES

In the absence of a valid and enforceable agreement, heres how the conflict of law rules

work:

1. Movable v. Real Estate - In general, applicable matrimonial law depends on thenature of the property. Lex situs is applied to immovable property i.e., real estate,

and the law of matrimonial domicile applies to movable property, provided there

has been no subsequent change in the spouses domicile.2

2. Full Mutability Doctrine - property relations between spouses are governed by theirlatest domicile, whether acquired before or after the marriage. This is also the norm

in England, except for a few cases where severe injustice results from a harsh

application. In those cases, the court also examines whether newly acquired

property can be traced back to property owned before the change.

3. Immutability Doctrine - the original personal law of the parties at the time ofmarriage continues to govern all property including subsequently acquired property,

regardless of a later change in domicile or nationality. This is the Continental

approach in France, Germany and Belgium. Also, with certain reservations, see Art.

7 of the 1976 Hague Convention on Marriage and Matrimonial Property Regimes.

Also in Israel: property relations between spouses shall be governed by the law of

21) For the purposes of Rules 27 to 30, the domicile of an individual shall be determined as follows:

(a) an individual is domiciled in the U.K. if he is resident in, and the nature and circumstances of his residence

indicate that he has a substantial connection with U.K.;

(b) an individual is domiciled in a particular place in the U.K. if he is domiciled in the part of the U.K. in which

that place is situated and is resident in that place;

(c) an individual who is not domiciled in the U.K. in accordance with paragraph (a) of this clause is domiciled in

another Regulation State or Convention State if by the law of that State he is domiciled in that State;

(d) an individual is domiciled in a State other than a Regulation State or Convention State if he is resident in,

and the nature and circumstances of his residence indicate that he has substantial connection with that State

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their domicile at the time of the solemnisation of the marriage, provided that they

may by agreement determine and vary such relations in accordance with the law of

their domicile at the time of making the agreement. Note that the Israeli

application of the Immutability Doctrine does not distinguish between personal and

real property. Both are subject to the law of domicile at marriage.

4. Partial Mutability or Mutability of New Acquisition - this is the American approachto conflicts of law in matrimonial property division cases. All movable property

acquired during the marriage is subject to the parties domicile law at the time of

acquisition, and not that of the original or intermediate domicile. What was acquired

before the marriage is governed by the law of the parties' domicile at the time of

marriage. Thus, if rights vested in a property when and where it was purchased, it

would not be adversely affected by a later change of domicile.

5. Lex Fori - In many cases, courts simply avoid this complicated and expensiveanalysis by applying their local law to the parties' entire property, even if there is a

foreign element. This is based on the assumption that laws around the world are

basically similar in their treatment of marriage as a co-partnership. Since the

partnership can be placed in the forum, the forums law applies to all its aspects.

Note that Lex Fori also applies to all procedural relief as opposed to substantive relief. Thus,

issues such as the ability to grant pre-trial relief, procedure and form, as well as statutes of

limitations are classified as procedure and are always subject to domestic law where the

divorce case is pending.

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O.MARITAL PROPERTY RIGHTS RELATED ISSUESIn conflict of laws, the issue of marriage has assumed increasing public policy significance in

a world of increasing multi-ethnic, multi-cultural and multi-national relationships. When

marriage-related issues arise between couples with diverse backgrounds, questions as to

which legal systems and norms should be applied to the relationship naturally follow with

various potentially applicable systems frequently conflicting with one another.

1. PUBLIC POLICYThe central political issue for each state is the choice between potential conflict and

accommodation, between assimilation and the preservation of minority rights in a

diversified society. Many nations formally adopt a policy to achieve a full cultural integration

and a uniform identity for all their citizens no matter what their ethnic, religious or social

origins. Regardless whether this is a realistic aspiration, it contrasts starkly with a policy to

allow "discrete and insular minorities" to form and retain their individual identities which

may be seen as a question of equality: as to whether a modern state should be aiming for

equality between its citizens or equality between groups.

As an institution, marriage represents a significant set of values which helps to define how

each country or state wishes to constitute the family unit, marital property matters,

disallowance of polygamy, regulate some aspects of sexual behavior, and plans for the

continued growth of population. The state may also allow religious qualities to be attributed

to the relationship or, as an aspect of the constitutional separation in

some countries between church and state, view it as no more than a form of domestic

partnership. It will also reflect deeply held beliefs and norms describing at which age people

may marry, the number of people who may enter the relationship, and whether same-sex

marriage is acceptable. Questions on the legitimacy of any children may also be difficult to

resolve.

So long as people remain in their own countries or states, they may hopefully understand theprevailing values and, whether willingly or not, decide on the extent to which they will

conform. But, as attitudes change and travel between states becomes

routine, governments have found it increasingly necessary to decide what forms of ceremony

or "common law marriages" they will allow to create valid marriages or conjugal unions in

their own territories, and whether all forms of marriage, lawfully recognized in

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another sovereign state, will be recognized for the purposes of immigration and access to

social welfare and other benefits nominally available to spouses.3The problem for each state

as it acts as a host for new cultures and belief systems is that a failure to accept and

accommodate the new social realities may simply drive the practice of the many customs

underground where the potential for abuse is significant. On the other hand, many would

agree that the host country may be permitted to stipulate the basic tenants of their law upon

whom ever wishes to live in their country. If the law as officially published and the reality on

the ground differ dramatically, this poses serious questions about the role of the judiciary in

protecting the human rights andcivil rights of the men, women and children who find

themselves victimized by the failure of the law to offer them protection.

2. THE CHOICE OF LAWThe standard choice of law rules for adjudicating on issues relating to marriage represent a

balance between the various public policies of the laws involved:

1. Status and capacity- Status and capacity are defined by the personal laws of theparties, namely:

- The lex domicilii or law of the domicile in common law states, and

- either the lex patriae or law of nationality, or law of habitual residence in civil law states).

The personal laws will usually define status in rem so that it is recognised wherever the

individual may travel subject only to significant public policy limits. Hence, for example, as

an aspect ofparens patriae, a state will define the age at which a person may marry. If such a

limitation could simply be evaded by the young person traveling abroad on a holiday to a

country with a lower age limit, this would clearly breach the policy of the "parental" state.

The same principle would apply to an adult who wished to create a polygamous marriage or

to evade a restriction on consanguinity. In Family Law as opposed to the Law of Contract,

there is also a strong case for legal capacity to be universally enforced to limit to ability of

individuals to evade normally mandatory rules. The claims of the lex loci celebrationis to

apply are weak given that the significance of the location may be no more than the

convenience of their laws to those wishing to marry.

3 Collins, Dicey and Morris, The Conflict of Laws (12th ed., vol. 2, Sweet and Maxwell, London) p. 939.

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P. VALIDITY OF THE MARRIAGE

The form of the marriage is governed by the lex loci celebrationis or the law of the place

where the marriage was celebrated or occurred, and is usually considered definitive onwhether the ceremony or legal recognition has been effective to create the relationship of

marriage and marital rights(see nullity). The validity of the marriage is governed by the

capacity of the parties to marry each other. Capacity to become a spouse, is usually governed

by the domicile of the parties.

1. Lex foriThe lex fori, or proper jurisdiction to adjudicate legal disputes, will usually be the state where

the spouses have sought to make their matrimonial home. This state will usually have a clearand direct interest in the applications of its policies to regulate the nature of relationships

permitted to confer the status of husband and wife within their territorial boundaries. It may

also attempt to regulate the behaviour of those who wish to cohabit within their territory

although this may contravene privacy rights.

There are serious problems of characterisation and the possibility of an incidental question in

the Family Law field because of the strength of the prevailing attitudes and prejudices on

sexual propriety. Hence, for example, given the increasing prominence given to the

phenomenon of paedophilia, the issue of age in relation to sexual activity has come to

represent a major issue for many Western states and, no matter what the claims of the lex loci

celebrationis to be applied as the determinant of the validity of any alleged marriage

involving young adults, the policies of the personal laws of the parties and the lex fori are

often given greater prominence.

Some think that these cultural responses to different customs are given impetus by an

underlying lack of respect for people of different race, religion or ethnicity. Whereas

traditionally the law is viewed as driven by the Doctrine of Comity and the principles of

reciprocity, those who administer and apply the law are undoubtedly affected by local social

or political pressures to disapprove some customs of "foreign" states.

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Q.CONFLICT OF LAWS AND MARITAL PROPERTY.

Where a man and a woman domiciled in different states are married in a third, and perhaps go

to live successively in a fourth and a fifth, the problem arises, in the absence of an

agreement4between the parties, as to what law shall determine their relative rights in property

owned at the time of marriage or acquired thereafter. With regard to immovables5

the result;

is clearly established: the law of the situs will normally refuse to allow the application of

foreign rules! to determine the title to its very domain. 6But in dealing with movable goods it

is permissible to adopt a rule of greater convenience, since the situs of such property is of less

significance.7

The desirability of applying a single uniform regime to the entire estate of the parties at thetime of marriage is sufficient to justify eliminating the law of the situs from the field of

competing possibilities.8And since the place of celebration of the marriage may be purely

fortuitous, its law should not effect such far-reaching consequences.9The pre-marital domicil

of the wife would hardly be chosen in preference to that of the husband.10

There remain for

serious consideration the pre-marital domicil of the husband, which automatically becomes

that of the wife, and the subsequent matrimonial domicil. In most of the cases that have

arisen the domicil of the husband and the matrimonial domicil have coincided, at least

temporarily, and the law of this jurisdiction has been followed on one ground or the other.11

Where there is a diversity, however, it might be argued that the law of the matrimonial

domicil should prevail, on the basis of its greater interest in the new relationship and the

probability that controversies in relation to the property will arise in its forum.

4 Express contracts purporting to fix the rights of husband and wife in all the property which they own or may

acquire will be enforced, in the absence of a strong opposing policy of the state ofsitus, as to movables

wherever situated, despite a change in the domicil of the parties.5 Duncan v. Lawson, 41 Ch. D. 394 (1889); Young v. Young, 5 La. Ann. 611 (1850); Kneeland v. Emsley, 19

Tenn. 620 (1838); CONFLICT OF LAWS RESTATEMENT (Am. L. Inst. 1927) 227.6 This is true whether the property is owned at the time of marriage or subsequently acquired.7

In determining succession to movables, for example, the law of the decedent's domicil is applied to the validity

of the will as well as to the question of what persons inherit in case of intestacy.8 Although this reasoning seldom becomes articulate in the decisions, the rejection of the law of the situs is

implicit in the cases cited in note 8, infra.9 Arendell v. Arendell, 10 La. Ann. 566 (1855); Fisher v. Fisher, 2 La. Ann. 774 (1847); Land v. Land, 22 Miss.

99 (1850); Brien dit Desrochers v. Marchildon, 15 Rapp. Jud. Que. (c.s.) 318 (1898).10

Fisher v. Fisher, 2 La. Ann. 774 (1847).11

Mason v. Fuller, 36 Conn. 160 (1869); Routh v. Her Husband, 9 Rob. 224 (La. 1844).

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Yet the application of this rule may prove inconvenient if the vesting of rights must await the

adoption of the new domicil. To define matrimonial domicil as the place of residence

intended by the parties at, the time of marriage would avoid this difficulty, but would be

inconsistent with the general principle that presence is necessary to the acquisition of a

domicil of choice.12

Furthermore, this criterion might often cause property to depend upon a

temporary13

whim of the parties. And so for the sake of certainty, the domicil of the husband

at the time of marriage should determine the respective property rights of the married couple,

14even where they make their residence in a different jurisdiction.

In dealing with the subsequent acquisition of single items of property, the need for a uniform

regime has not always15

availed to cause a departure from the usual rule that the law of the

situs governs the passage of title to property. 16Yet it would seem that the domicil at the time

of the acquisition is more vitally interested in the relative rights of husband and wife than is

the situs. Furthermore, the application of the law of the situs might cause great confusion in

the ownership of the family possessions. The concern of the situs in the certainty of titles to

property in its jurisdiction might be safeguarded by statutory provisions protecting bona fide

purchasers and attaching creditors. In any case that interest would seem to be offset by the

similar interest of the domicil, to which the property will normally tend to move; and this

seems to be recognized by the courts. 17

The House of Lords has held, in the case of a marriage governed at the outset by French law,

that property rights in future acquisitions are determined by the law of the husband's domicil

at the time of marriage, on the ground that there is a tacit contract to abide by the provisions

of the French code despite changes of domicil.18

But the fiction of a contract formed by two

12Conflict Of Laws Restatement (Am. L. Inst. 1930) 18.13 Although some courts speak of the matrimonial domicil as that intended by the parties, no case has followed

this principle where the intention was not actually carried out. In such situations, outright denial of the principle

has been avoided only by holding that the intention was not adequately proved.14 See note 8, supra.15 The law of the situs has sometimes been held to apply. Shumway v. Leakey, 67 Cal. 458 (1885). This view is

adopted by CONFLICT OF LAWS RESTATEMENT (Am. L. Inst. 1927) 311.16 Green v. Van Buskirk, 7 Wall. 139 (U. S. 1868)17 Nelson v. Goree's Adm'r, supra note 3; Birmingham Water Works Co. V. Hume, 121 Ala. 168, 25 So. 806

(1898).18

De Nicols v. Curlier, [1900] A. C. 21.

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unsuspecting persons has prevailed nowhere else,19

and probably would not be extended by

the English courts to cover marriages made under less explicit statutory provisions.20

A further problem concerns the effect of a change of domicil of the spouses on their relative

property rights. 21If the law of the situs is regarded as the proper law to be applied to newly

acquired property, a change in the situs of the property may give rise to the same problem. A

change in domicil orsitus, with nothing more, is not sufficient to alter the property rights of

husband and wife.22

This is emphasized by the Conflict of Laws Restatement,23

which uses the situs as the

significant factor,24

but provides the qualification that rights shall remain unaffected by

transportation of the property into a new jurisdiction only until there has been some new

dealing with them there. What sort of new dealing is required is not specified. It seems

settled, however, that a single exchange of the goods for other property does not change the

nature of the property rights in the proceeds. 25It would seem indeed that the parties' vested

rights must remain undisturbed until the proceeds of the original goods can no longer be

identified.26

19. The doctrine of a tacit contract was expressly repudiated in Saul v. His Creditors, 5 Mart. (N.S.) 569 (La.

1827); Matter of Majot, 199 N. Y. 29, 92 N. E. 402 (1910)20 In the De Nicols case the House of Lords relied heavily on the French Code, which purported to establish

rules covering every possible situation. see DICEY, CONFLICT OF LAWS 717.21

The problem is the same whether the property involved belonged to one of the spouses at the time of marriage

or was subsequently acquired22 Gluck v. Cox, 75 Ala. 310 (1883); Mueller v. Mueller, 127 Ala. 356, 28 So. 465 (1899); Estate of Drishaus,

199 Cal. 369, 249 Pac. 515 (1926);23 312.24 See note 12, supra.25

Stephen v. Stephen, 284 Pac. 158 (Ariz. 1930); Succession of Robinson, 23 La. Ann. 174 (1871)26

See Mcanally v. O'Neal, 56 Ala. 299, 302 (1876).

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R.LAW OF CAPACITY IN INTERNATIONAL MARRIAGES

ONE of the most intricate questions that can arise out of the conflict of laws is that of the

validity of international marriage; and the effect of invalidity is so disastrous, both materially

and morally, that the right solution of the problem is one for which above all others the

conscientious lawyer should anxiously seek. Not only is the problem intricate in its nature,

but so various are the solutions reached in the different civilized states that no lawyer can

safely advise in the matter without some familiarity with the law of each country involved in

the marriage.

Marriage is now regarded in all civilized states as a status based upon legal consent of the

parties; this consent, however, is not self-operative, but gives rise to the status only as the

result of the consent of the proper sovereign power, acting through its law. So far as the

parties are concerned, assuming their consent in fact, nothing further is required for a valid

marriage but their capacity to give a legal consent; this capacity of parties is the greatest

difficulty involved in determining the validity of an international marriage.

There is a fundamental difference between the common law and the civil law of Europe in

their conception of personal capacity. The common law regards a man as a natural creature; if

he is alive, if he has a mind and exercises it, if he is a free and independent being, the law

accepts him as such. A few cases are, to be sure, dealt with artificially: an infant, though he

may in fact have a consenting mind, is incapable of contracting; a married woman, though

she may in fact be the moving spirit of the family, is dealt with as under her husband's

coercion; a corporation, though in fact an aggregation of individuals, is dealt with as a single

entity. These are recognized as exceptions to the general rule, based upon reason, but

technical and arbitrary.

In European countries, on the other hand, natural facts and powers of human life are nothing

to the law until the law makes them so. If the law will, a man lives; if it so decree, he dies

before the law, though his natural life continues unchanged. If the law endows him with

power to speak, to will, to act, he may effectively do so; if not, then so far as legal results go,

his speech is inarticulate, his will a mere thought, his act is as if never done. Until the law

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gives a man any capacity, he is not regarded as possessing it. Civil capacity, in short, is

altogether a creature of the law, and is dependent, therefore, upon some law having conferred

it. Once conferred, the capacity to act becomes a status, continuing until taken away again by

the proper law, as may happen by civil death, interdiction, or bankruptcy.

Since civil capacity is a status, it must (according to this view) be conferred by the proper

law, which is the law of the sovereign who has power over the status. Down to the French

Revolution that sovereign was regarded in all European states as the sovereign within whose

territories the individual was domiciled; status (including capacity) was governed by the law

of the domicil. capacity, once regulated by the law of the individual's domicil, is now

regulated by the law of his nation. This doctrine, so clearly set forth in the codes and the

treatises of the continent, and stated as if it were to be applied in all cases, is nevertheless

subject to many exceptions when actually applied by courts in litigated cases. Where the

capacity created by the law of the status appears to be for the benefit of citizens of the forum,

the doctrine is rigorously applied; but where it would operate to the fraud, or even to the

disadvantage of citizens of the forum, the courts are quick to find an exception. Thus, in the

case of De Lizardi v. Chaize,27

where the defendant was an infant by his own law, though he

would have been of age in France, the Court of Cassation said:

It is proper in applying the foreign statute to enforce restrictions and limitations without

which there would be constant danger of error or surprise to the prejudice of French citizens.Though on principle one is bound to know the capacity of the person with whom one enters

into a contract, the rule cannot be so strictly and rigorously applied with regard to foreigners

contracting in France. Civil capacity may in fact be easily verified in the case of transactions

between French citizens; but it is otherwise as to transactions that take place in France

between Frenchmen and foreigners. In such a case, the Frenchman cannot be held to know

the laws of various nations, and their provisions as to minority and majority and the extent of

the power of foreigners to make agreements within the limits of their civil capacity. It is

sufficient for the validity of the contract that the Frenchman has acted without laches and

negligence and in good faith.

2721 Clunet's Journal du Droit Internat. Priv 417.

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S. NEED FOR CONFLICT OF LAW RULES IN MARITALPROPERTY ISSUES

Matrimonial property is widely prevalent in civil law countries such as continental Europe

and Latin American nations. This concept has not yet received its due importance in India

and issues relating to this concept have not been agitated vehemently before Indian courts so

far. However, with the globalization, privatization and liberalization and large scale

immigrations that are taking place, in these countries too, legal issues concerning the

properties that may have been acquired or purchased or raised in India or in such jurisdictions

during the subsistence of marriage are becoming more and more important.

The current challenge is that if one of the spouses settled in civil law and / or common law

countries, how to address their problems. India has large scale NRI population in the USAand the UK, not least to mention in African and Middle-East Regions. In the USA, 41 states

follow the Community Property System while other follows Separate Property System. Under

the CPS, predetermined assets of husband and wife either by law or contract are treated as a

single mass and on the termination of marriage, either by death or divorce is shared equally.

advantage is that the danger of completely disinheriting a widow is checked by imposing

restriction on testation. Whereas, under the SPS wife is the owner of her property, distinct

from her husband as she had been before her marriage as the husband is, of his. Each spouse

has independent powers of disposition over his or her property without the need for consent

of the other spouse. The sharing of assets of husband and wife is not institutionalized. CPS is

governed by contract or in the absence of contract by the law of state of dominant interest.

The state of dominant interest by and large will depend upon the nature of property.

The problem is not related to immovable property because the law relating to immovable

property is governed by the lex situs (location of property). Since no community of property

right attaches at the time of marriage to the existing assets the chances of conflict regarding

such are reduced to minimum. After marriage while the governing law remains the same lexsitus, but tracing rule also becomes important, i.e. marital rights in assets used to purchase

land will be recognized in the land after purchase marital interest which attaches to

movable assets acquired by the spouses according to the law of their domicile at the time of

acquisition is recognized and traceable into real property located in another state in which

those assets are invested rationale ones title to money or other assets, is not lost by

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moving it across a state line and turning it into some other form of property. Income from

immovable property on receipt whether to be characterized as separate or community

property would depend upon the marital domicile at the time that income is acquired.

As far as movable property is concerned,

no state provides for an immediate marital interestin the movable assets of the other spouse at the time of marriage the law of domicile of the

party who has acquired the property will be applicable and law of common domicile will be

applicable for such properties after marriage.

In the United Kingdom, governing law depends upon the selection of party the law for

matrimonial property, in absence of such selection; law of matrimonial domicile will be

effective. It is important to note, however, that husbands domicile is largely taken into

consideration as it is believed that such a rule provides a simple and certain means of

identifying controlling of law. This has serious disadvantage for disserted NRI wives in the

UK.

Looking at home, marriage does not have the legal effect of creating community property,

India has adopted SPS which prevails in England and whatever its pros and cons have been

inherited and applied by our legal and judicial system. Because of this our personal laws

suffer from a serious disadvantage of the Separate Property System namely, the unrestricted

power of testation that empowers one to disinherit ones spouse, ignoring moral and social

obligation. India has followed the English rules of conflict that in absence of a settlement or a

contract between the parties to a marriage involving a foreign element, the parties to such

marriage shall continue to enjoy properties separately and the marriage will not bring any

change in their separate rights of ownership in the property with their individual and

exclusive right to own and dispose of the properties whether acquired before or during the

marriage. Lot of Indians find legal issues relating to their rights in such properties calling for

solutions as any other person from other jurisdictions. Therefore there is a need for a uniform

set of rules providing for solutions to such conflict of law situations and cannot be avoided.

At international level, the Hague Convention on Matrimonial Property of 1978 does not

provide a solution because it is partial towards the civil law countries, hence, NRI living in

common law countries, USA, UK and many other commonwealth nations cannot depend

upon this convention.

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One solution has been proposed for a long time is the changes in our personal laws, but we

cannot wait for long and ignore that large number of Indians have already migrated to

Community Property System countries esp. to continental Europe

In view of the above, India needs to understand codify the matrimonial property regimes bythe PIO/NRIs who aspire to settle in those jurisdictions cannot be under estimated.

Indian Succession Act 1925 recognizes pre-marriage contract/settlements for opting out of

existing separate property regime entered into between the parties to a marriage, one of

whom is domiciled in India and the other being domiciled outside India.28

This provision is

intended to harmonize the Indian conflict of law on marital property and safeguard the

interests of Indian who are marrying in jurisdictions where community property regimes are

prevalent.

There are, if at all, no litigation before the Indian courts asserting rights by persons of Indian

origin in the matrimonial properties and therefore the issues of conflict of laws in respect of

PIOs could not be examined. One of the reasons may be that most of the immigrants so far

have been investing their savings in India and therefore no litigation for asserting share in

matrimonial property could arise, however, this does not mean that India must not prepare

itself to meet the future litigation in the face of globalization.

28Nygh and Davies, Conflict of Laws in Australia (7

thed., para 32.2) in Atul M. Setalvad, Conflict of Laws,

(Lexis Nexis Butterworths, Delhi) p. 410.

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T. ''LEX LOCI CELEBRATIONIS

The ''lex loci celebrationis is the Latin term for "law of the place where the marriage is

celebrated" in the conflict of laws. Conflict is the branch of public law regulating

all lawsuits involving a "foreign" law element where a difference in result will occur

depending on which laws are applied.29

Explanation-

When a case comes before a court and all the main features of the case are local, the court

will apply the lex fori, the prevailing municipal law, to decide the case. But if there are

"foreign" elements to the case, the forum court may be obliged under the conflict of laws

system to:

1. Consider whether the forum court has jurisdiction to hear the case (see the problemof forum shopping);

2. Characterise the issues, i.e. allocate the factual basis of the case to its relevant legalclasses; and

3. Apply the choice of law rules to decide which law is to be applied to each class.The lex loci celebrationis is a choice of law rule applied to cases testing the validity of

a marriage. For example, suppose that a person domiciled in Scotland and a person habitually

resident in France, both being of the Islamic faith, go through an Islamic marriage ceremony

in Pakistan where their respective families originated. This ceremony is not registered with

the Pakistani authorities but they initially establish a matrimonial home in Karachi. After a

year, they return to Europe. For immigration and other purposes, whether they are now

husband and wife would be referred to the law of Pakistan because that is the most

immediately relevant law by which to decide precisely the nature of the ceremony they went

through and the effect of failing to register it. If the ceremony was in fact sufficient to create

a valid marriage under Pakistani law and there are no public policy issues raised under their

personal laws oflex domicilii or habitual residence, and under the lex fori, they will be treated

a validly married for all purposes, i.e. it will be an in rem outcome.

29 Collins, Dicey and Morris, The Conflict of Laws (12th ed., Vol.2, Sweet and Maxwell, London) p. 962.

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U.CONFLICT OF LAW ON MARITAL PROPERTY-CASES

1. Ogden V Ogden

The notorious case ofOgden v Ogden30. A domiciled Frenchman,2 who was 19, married a

domiciled English woman in England without first obtaining the consent of his surviving

parent, which he was required to do by Article 148 of the French Civil Code. The husband

obtained an annulment of the marriage in a French court on the ground of want of consent.

The wife then went through a ceremony of marriage in England with a domiciled

Englishman. The second husband petitioned for a decree of nullity on the ground that at the

time of the ceremony his wife was still married to the Frenchman. The court had to decide

whether the first marriage was valid. There were two connecting factors: the husband was

domiciled in France; the marriage was solemnised in England. This indicates the existence of

two rules:

- The essential validity of the marriage (that is the husbands capacity) must begoverned by French law

- The formal validity of the marriage ceremony is determined by English law.

So what the English court had to decide was whether the French law, the purpose of which

was to protect French minors from marrying without parental permission, applied to a

marriage in England. If the French rule was characterised as within matters of essential

validity it would apply to marriages wherever they were celebrated and the marriage in

England would accordingly be void. The second marriage would then, of course, be valid. If,

on the other hand, it was characterised as a matter of formal validity, it would be governed by

the lex loci celebrationis (English law) and the first marriage would be valid (English law

rules that a marriage of a minor without parental consent is valid). The English court would

therefore come to a different conclusion from the French court. It would, of course, enable

the second husband to extricate himself from his marriage (which would as a result be

bigamous).

The Court of Appeal concluded that the French rule was formal. Indeed, it suggested that

every rule requiring parental consent to a marriage must be characterised as formal. The

30Ogden v Ogden [1908] P 46.

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result was that Mrs Ogden was in the eyes of English law not Mrs Ogden but the wife of a

Frenchman. Of course, French law denied this: if asked it would say she was married to her

second husband.

2. SchwebelvUngarThe facts ofSchwebel v Ungar

31 (A Canadian Supreme Court decision) are that a Jewish

husband and wife domiciled in Hungary married in Hungary. They later decided to emigrate

to Israel. While en route in Italy the husband divorced his wife by issuing a Jewish bill of

divorcement (known as a get). Under the law of Hungary (their domicile) and Italian law,

the divorce was invalid, but it was recognised by the law of Israel. They acquired a domicile

of choice in Israel. Subsequently, the wife went to Toronto and, while she was still domiciled

in Israel, married a second husband. He brought proceedings for nullity on the ground that the

marriage was bigamous. The Supreme Court of Canada held that the marriage was valid.

There are different interpretations of this case32

but it is possible that what the court was

doing was upholding the second marriage without recognising the divorce. If this is right, it

means that the court decided the incidental question (the validity of the divorce) by the

conflict rules of Israel, the country whose law governed the main question (the wifes

capacity to marry), and not by the conflict rule of the forum.

3. Lawrence vLawrence

The facts ofLawrence v Lawrence33

are that the first husband and his wife married in Brazil.

Subsequently, the wife divorced the husband in Nevada (this was not recognised in Brazil)

and the next day married the second husband in Nevada. The second husband petitioned for a

declaration as to the validity of this second marriage. The incidental question arose from the

fact that, under Brazilian law the law of the wifes domicile to which English choice of

law rules referred capacity to marry, she lacks capacity to marry the second husband. The

Court of Appeal (by a number of routes which will be discussed later in this guide) upheld

the validity of the second marriage. They did this by giving primacy to the divorce

recognition issue at the expense of that of capacity to marry.

31Schwebelv Ungar[1964] 48 DLR (2d) 644.32

See Dicey and Morris, p.48.33Lawrence v Lawrence [1985] Fam 106.

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V.POSITION IN INDIA34An Indian court must not entertain any action for a declaration as to title to, or division of,

foreign marital immovables or for possession of such an immovable.35

However, in respect of

the foreign marital immovable property the courts have retained a limited jurisdiction againstpersons located within their jurisdiction, if there is equity between the parties arising from the

contract of marriages. In such cases, declaration of title to foreign land may be granted if

otherwise there is no dispute as to its title.36

The courts in India assume jurisdiction in suits pertaining to marriages affecting property

situated in a foreign country, or for preservation or protection of a trust fund situated in a

foreign country, if the parties are in India but they will not interfere with an administration of

foreign trusts.37

Further, a court in India, in the exercise of its equitable jurisdiction may order

payment of interim relief against a defendant who has been in wrongful possession of marital

foreign property.38

The general rule is:

All rights over, or in relation to, an marital immovable land are governed by the law of

the country where the immovable is situated (lex situs).39

The general rule is that all questions that arise relating such immovable property situated

abroad are to be determined by applying the lex situs.40This rule is based on the fact that

applying any other system of law may be ineffective if the lex situs does not recognize the

rights created by that other system. The only exception to the general rule is that some purely

contractual situations can be determined by the lex fori where the order of the court can be

made effective against a defendant in personam. There appears to be no international

convention on the subject.41

34 Castel and Walker, Canadian Conflict of Laws (6th

ed., para 22.1) in Atul M. Setalvad, Conflict of Laws,

(Lexis Nexis Butterworths, Delhi) p. 411.35

Nilkanth Balwant Natu v. Vidya Narsinh Bharathi Swami, AIR 1930 PC 188; Krishnaji Pandurang Sathe v.

Gajanan Balwant Kulkarni, (1909) 11 Bom LR 352.36Kashinath Govind v. Anant Sitaramboa, (1899) ILR 24 Bom. 407.37

Bilasraj Joharmal v. Shivnarayan Sarupchan, AIR 1944 PC 39.38Mahadeo Govind Suktankar v. Ramachandra Govind Suktankar, AIR 1922 Bom 188.39 Rule 117, Dicey, Collins and Morris, The Conflict of Laws (12th ed., Vol.2, Sweet and Maxwell, London) p.

960.40 Atul M. Setalvad, Conflict of Laws (Lexis Nexis Butterworths, Delhi) p. 419.41

The general rule set out above is, however, internationally recognized. The Hague Convention on the

Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971 accepts that a

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This principle not only to English, but also to foreign marital immovables, to the limited

extent42

that English courts are called upon to determine rights over rights over foreign land

.Their decision must be governed by the lex situs, i.e. the law of the country where the land is

situated. This is because the sovereign of the country where the land is situated has absolute

control over the land within his dominions: he alone can bestow effective rights over it; his

courts are, as a rule, entitled to exercised jurisdiction over such land.

foreign judgment on a question relating to immovable property situated in the country whose court is

considering whether the judgment should be recognized or enforced: Art. 10(3).42

Rule 116, Collins, Dicey and Morris, The Conflict of Laws (12th

ed., Vol.2, Sweet and Maxwell, London) p.

945.

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W.CONCLUSION

The rules of married life e.g., the obligations of the spouses to one another, and the

obligation of parents to their children are usually determined by whatever jurisdiction the

couple is living in at the time.43

Divorce can take place in any state in which either of the married partners is domiciled. The

decree-granting state, if it has power over the marriage (because it is the domicile of either of

the partners) may, and usually does, apply its own standards of dissolution, even if those rules

are radically different from the rules in effect at the time and place in which the parties had

married or where they lived most of their married life.44

In most jurisdictions, parties about to marry have some quite limitedpowers to affect through

contract their financial rights and obligations post-divorce, and also to affect the marital

property regime during marriage.45

Also, in covenant marriage states, parties can choose a

form of marriage which purports to constrain the grounds and procedures for divorce, but the

enforceability of these provisions outside the state of celebration is in question.46

A slight variation: marital property is usually held to obtain its characterization as community

property or separate property according to the state in which the partners are domiciled when

the property is acquired (regardless of the property rules in the state in which the parties were

first married, and regardless of the property rules of the subsequent domiciles).47

43Cf. Williams v. Jeffs, 2002 UT App. 232 (in case brought in Utah court involving a marriage domiciled in

Arizona, Arizona law, not Utah law, applies to whether one partner can sue for alienation of affection).44 One more complication: the jurisdictional rules for divorce-related property division and for divorce-related

custody determinations are different than the jurisdictional rules for a simple dissolution. Courts have

jurisdiction over the res of the marriage, and thus have the power to dissolve the marriage, in the state in whicheither partner is domiciled; courts may set financial obligations only when they have personal jurisdiction over

both parties.45 See, e.g., Brian H. Bix, Premarital Agreements in the ALI Principles of Family Dissolution, 8 DUKE J.

GENDER L. & POLY 231 (2001)46See, e.g., Katherine Shaw Spaht & Symeon C. Symeonides, Covenant Marriage and the Law of Conflicts of

Law, 32 CREIGHTON L. REV. 1085 (1999) (discussing the issue). 47

See, e.g., LAWRENCE W. WAGGONER, GREGORY S. ALEXANDER & MARY LOUISE FELLOWS,

FAMILY PROPERTY LAW 522 (2nd ed.,1997). As a number of family law practitioners have informed me, in

actual litigation courts will often ignore the technical conflict of laws rules regarding marital property, and

merely apply the forum law to all of the marital property.

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BIBLIOGRAPHY

y Halsburys Laws of India: Competition Law & Trade Practices, Conflict of Laws,Courts , Vol. 10, ed. 2002, Lexis Nexis Butterworths, New Delhi, p. 267.

y Atul M. Setalvad, Conflict of Laws, Lexis Nexis Butterworths, London. y Castel and Walker, Canadian Conflict of Laws, 6th ed.y Dicey, Collins and Morris, The Conflict of Laws, 12th ed., Vol.2, Sweet and

Maxwell, London.

y J. D. McClean, Morris: The Conflict of Laws, 4th ed., Universal Law Publishing Co.Pvt. Ltd., Delhi.

y Nygh and Davies, Conflict of Laws in Australia, 7th ed.y P. M. North and J. J. Fawcell, Cheshire and Norths PIL, 13th ed., Lexis Nexis

Buttherworths, Delhi.

y Atul M. Setalvad, Conflict of Laws, (Lexis Nexis Butterworths, London), p. 419.